Canada Ordered to Stop Discriminating Against First Nations Children, For the Third Time

Today, the Canadian Human Rights Tribunal released a decision in the ongoing case First Nations Child and Family Caring Society et al v. Canada, in which the Tribunal again orders Canada to stop discriminating against First Nations children in child welfare funding. This is the third time this year that the Tribunal has ordered Canada to stop discriminating against First Nations children.

This decision is the Tribunal’s second decision on the remedies that should flow from the Tribunal’s January 2016 decision that Canada’s funding model for child welfare services illegally discriminates against on-reserve First Nations children. The first decision on remedies was released in April 2016, and ordered Canada to comply with the Tribunal’s ruling and take immediate steps to eliminate discrimination.

Today’s ruling again orders Canada to take concrete steps to eliminate discrimination against First Nations children. The Tribunal points to very specific components of Canada’s funding model for First Nations Child and Family Services agencies and has ordered Canada to stop using population assumptions and thresholds when it determines funding for child welfare (see paragraph 45). Instead the Tribunal has ordered Canada to take into account the needs in individual communities, including remote communities, when it makes funding decisions.

The Tribunal also has ordered Canada to provide detailed information about how Canada came up with its budget numbers, and what exactly Canada is doing to ensure that it is fully implementing Jordan’s Principle and eliminating discrimination against Ontario First Nations children under the 1965 Indian Welfare Agreement.

In the hearings about remedies, the Canadian Human Rights Commission, the First Nations Child and Family Caring Society, the Assembly of First Nations, and the interveners Chiefs of Ontario and Nishnawbe Aski Nation have all expressed to the Tribunal that Canada had declined to immediately provide funding for many items that could alleviate discrimination against First Nations children in the short term.

The Tribunal also expressed concern at Canada’s statements that many immediate relief measures the complainants had asked for at the Tribunal would not be implemented until Canada had fully consulted First Nations and stakeholders. The Tribunal says, at para. 34, “…deferring immediate action in favour of consultation and reform at a later date will perpetuate the discrimination the FNCFS Program has fostered for the past 15 years” (see para. 34 of today’s decision).

The Tribunal has also said it will be asking all the parties to come to case management and that the Tribunal will be evaluating and monitoring Canada’s compliance with the Tribunal’s order to stop discriminating.